How Harvard Law threw down the gauntlet to the RIAA

Inside one Harvard Law professor's bid to turn his students into …

In retrospect, Harvard's eventual involvement was obvious. As far back as 2007, we noted that RIAA prelitigation letters had yet to be sent to Harvard, and one reason for that may have been the quite public opposition of Harvard Law School to the entire RIAA legal campaign.

Law professor Charles Nesson and John Palfrey, director of the Berkman Center for Internet & Society (which Nesson co-founded), made their position clear. "Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a 'passive conduit' for students downloading music," they wrote in 2007. "We agree. Harvard and the 22 universities to which the RIAA has sent 'pre-litigation notices' ought to take strong, direct action... and tell the RIAA to take a hike."

Those notices were an attempt by the RIAA to get schools involved in the litigation process. Universities would, in theory, pass RIAA settlement letters on to students after being provided with an IP address suspected of illicit file-sharing. The schools would be "doing their part," while the recording industry got its missives delivered without needing to bother with courts and judges and subpoenas.

"Universities should have no part in this extraordinary process," wrote Nesson and Palfrey. "The RIAA's charter is to promote the financial interests of its corporate members—even if that means preserving an obsolete business model for its members. The university's charter is quite different... The university strives to create knowledge, to open the minds of students to that knowledge, and to enable students to take best advantage of their educational opportunities. The university has no legal obligation to deliver the RIAA's messages. It should do so only if it believes that's consonant with the university's mission."

It wasn't quite a declaration of war, but it did amount to an Army unit trotting out a massive howitzer, oiling it up, and firing off some test shots. Powerful interests at Harvard Law were displeased enough by the RIAA actions to speak out, but they weren't yet ready to play an active role.

That is, until Boston University graduate student Joel Tenenbaum got in touch with Nesson in 2008. Nesson took the case, acting as Tenenbaum's attorney, but he outsourced the work of research, strategy, and brief writing to a set of eager Harvard Law students. The students would quickly mount an ambitious defense, not just of Joel Tenenbaum, but of the claim that the RIAA legal campaign was unconstitutionally excessive and improper. Armed with a law library, Twitter, a Web site, and caffeine, the students have already made sure that the upcoming Tenenbaum trial will eclipse the Minnesota Jammie Thomas case for sheer spectacle.

And, if things go their way, the world will get the chance to see it all live on the Web.

Students defending students

Prof. Charles Nesson

Professor Nesson's CyberOne course at Harvard gets students involved in hands-on legal issues. In its Fall 2008 incarnation, one of the projects that Nesson approved was the defense of Joel Tenenbaum, who until that point had been pro se—that is, defending himself.

Joel's mom was a lawyer, and she provided assistance, but Joel was in a bad way. Up against the RIAA legal machine, his case had been filed in Massachusetts federal court and consolidated with a number of other cases. The RIAA's initial offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the case went to court in 2007, the judge ordered the parties to settle and work it out between themselves. Joel offered $5,000. The RIAA demanded $10,500.

Joel declined, but the decision was a fraught with risk. Unable to pay the thousands (or tens of thousands) of dollars for a lawyer who could fight the case well, he risked losing in court. That could mean staggering judgments of "statutory damages" that have no necessary connection to any actual damages suffered by any actual group—perhaps as much as a million dollars for the seven songs at issue in the case (he risks $150,000 in fines per infringement).

Judge Nancy Gertner, the federal judge overseeing the case, comes from the new generation of US judges: she knows her way around technology, writing her own blog and appearing on podcasts.

Gertner was (and is) facing numerous file-sharing cases, many of which are for large default judgments. Judges, interested as they are in justice, don't usually prefer to hand out big default judgments if they don't need to; they prefer to hear all sides of a story first.

In fact, Gertner hasn't been shy about her opinion of the music industry's litigation. When Tenenbaum was explaining in one hearing that he didn't yet have a lawyer, Gertner eventually unleashed the following astonishing statement (PDF):

I've said this before in open court. There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights.

Some category of individuals are defaulted because they read the summons, and they haven't the foggiest idea what it means and don't know where to go, so they're defaulted, and they owe money anywhere from $3,000 to $10,000 as a result of these defaults...

As I said, it does not make sense, however, to fight them alone. It simply doesn't make sense to fight them as an individual, per se, and to some degree you run the risk that the longer you litigate without really having a basis to do so, the longer you fight without having a basis to do so, the plaintiff's legal fees go up and up.

I can't say this is a situation that is a good situation or a fair situation. It is, however, the situation.

The judge then concluded by telling the RIAA lawyers that they were "basically bankrupting people, and it's terribly critical that you stop it." She ordered Tenenbaum and the RIAA into an immediate settlement conference, but the music industry had already raised its fee (spurred, it said, by the court costs it had incurred from all the hearings and motions) beyond what Tenenbaum was willing to pay.

I can't say this is a situation that is a good
situation or a fair situation. It is, however, the
situation.

Judge Gertner also promised to help Tenenbuam find a lawyer, and she put him in touch with Professor Nesson.

Nesson saw in the case an opportunity for to get his students involved directly in a hot-button federal case. In the fall of 2008, Nesson taught a course called CyberOne, which "has segued into a series of working groups positioned to work on the forefront of important issues central to cyberspace, especially issues of digital freedom, open online education, and restorative justice."

Tenenbaum's case was chosen as a course project, though it wasn't the only one; other students worked on legitimating poker "as a teaching tool," another dealt with marijuana decriminalization, and third sought "to further restorative justice and reconstitution for the people of Jamaica through its support of constitutional reform."

But the Tenenbaum case offered the most direct way for students to immerse themselves in an issue of tremendous importance to the "born digital" generation that they represent. Nesson gave the students plenty of work, too; though he is representing Tenenbaum as his attorney, it is the students who are doing the research, writing the briefs, and handling the public relations. Nesson oversees the case like "a senior partner at a firm," says Matt Sanchez, one of the student leaders on the project.

Great article, and surprised I managed to make sense of it at this hour. Glad to see a real fight being put up here. I think the media onslaught could really do the most good, especially with the power they had behind the motion for live feed from the court room.

I want to go to Harvard Law School now. These students are a damned inspiration. And the points brought up here I never considered. 150 grand per song when you can't even prove that an artist lost that amount of money? It's absurd. Plus, you can't even connect a human being to a particular computer that has an IP address that was connected with file sharing. With the was technology is today, a cracker can use someone else's computer (and its associated IP address) to shift music files around. Hell, mine could be doing this right now and I wouldn't know, but that doesn't mean that it's ME downloading the music knowingly.

One of the big problems I have with these cases is that the Music industry has tremendous power to lobby governments for suitable changes to the law and the individuals who voted the government in get screwed as no one listens to them. It is about time governments listened to their voters rather than taking money from large corporations. The music industry makes a big deal about the fact that they consider file swapping as theft yet we have perfectly good laws to deal with theft that they refuse to use! The Law is there to protect the interests of general society and yet the Music industry is using it as a way to generate income to replace their ancient and failing business models!

I hope they don't stop until they destroy the music industry and all the excessive greed it stands for.

Only Harvard and possibly a select handful of other universities could do this. Don't underestimate the power of Harvard Law School. Those same politicians you're talking about are alumni of either there or Yale. We all knew that the war between the RIAA and the universities wouldn't end until the RIAA got the balls to charge someone at Harvard or in this case, close enough to Harvard. I hope Harvard wins. The RIAA needs to be stopped if only to make the MPAA think twice about going down the same path all over again.

Nits:1. No picture of Nnamdi Okike. He's black, of Nigerian descent. Do us a solid and get a picture (no, he's not in the group shot).

2. Damn, Debbie, could you possibly use more eye shadow? :P

Good article, and a good beginning. Hopefully the RIAA learns a lesson in the process, though I doubt it. The larger issue of the merits, use and abuse of copyright is far beyond the scope of this case, and I appreciate that the students very clearly articulate that they are not making any arguments in that direction.

NATE, maybe you can help me out here. What is stopping the RIAA from dropping this case? Every other time the defendant put up a fight they were all too eager to drop it (Bar a few). A media circus is the last thing they want, so are the lawyers just very good at convincing their clients to payroll another yacht?

Does their willingness not to drop this case come from the counterclaim? I really have no idea at this point.

Nothing is 'stopping' them from dropping it, but the music industry has not generally dropped cases it thought it could win no matter how much press coverage they generated. Defendants have generally settled or the RIAA becomes convinced it got the wrong person; when neither of those happen, the group apparently wants to make sure it wins in court to set precedent.

To that end, the students have filed a counterclaim against the music industry. It argues that the entire RIAA "onslaught" is unconstitutional and that federal judges should impose serious limits on the group's legal campaign.

The argument here is threefold: first, the damage awards in these cases are simply excessive and violate the Constitution's 14th Amendment. Second, these are essentially criminal cases and Congress has unconstitutionally delegated prosecutorial power to a "private police force" (the music business). And, finally, because the cases are essentially criminal, they should not be tried under the standards of civil law.

This sums up nicely my own expressed opinions about the RIAA's activities since the beginning--I'm so glad to see that at least some elements of the legal community aren't still asleep at the switch. I only question why so many civil courts in the nation are so jaded that they cannot see with the same clear-eyed perspective as found in law schools. I find that lamentable.

As mentioned earlier in the article, I've always been concerned with the fact that the RIAA can get away with hoisting this sort of activity into civil courts without the necessity of having to prove damages respective to each case and defendant. What the RIAA has done has distorted the entire civil process, imo. It has lobbied for legislatures to impose statutes that set arbitrary damages, and then it turns around and seeks to use those very statutes as "proof" of real and actual damages in each and every case--all the while having actually proved no damages specific to any of the defendants it sues. I also agree with the notion that the RIAA needs to make up its mind as to whether it seeks criminal or civil sanctions--it is again distorting the entire fabric of the civil system by seeking to use it as a venue for statutory violations, an approach which automatically puts these matters into a criminal context. But of course, the bar of "proof" in civil cases is far lower than it is in criminal cases, which explains the tactic. What is not so easily explained, however, is the seeming indifference inside many civil courtrooms as to these tactics.

Basically, the RIAA has waltzed all over the civil court system in the US and has twisted and maligned it to the degree that it is scarcely recognizable as anything *but* a rubber-stamp for the RIAA. Now, as sleeping jurisprudence at last begins to stir towards consciousness, the RIAA announces that it is shelving these tactics--even while it is still filing these suits. There are so many serious problems with what the RIAA has done, and what many civil venues in the country have in fact allowed the RIAA to do, that it would be difficult to catalog all of them in a single sitting... I think, though, that the RIAA has indeed been given enough rope to hang itself. I think it's sad that these observations have to come from a law school instead of a civil law courtroom--although as this article points out there indeed a few sitting judges who seem to get it.

"Because isn't the first cardinal rule of perm maintenance that you're forbidden to wet your hair for at least 24 hours after getting a perm at the risk of deactivating the immonium thygocolate?" Those Harvard Law Students can be so tricky!

I hope in one of his earler replies to the RIAA "offer" Joel had the presence of mind to use the typical big-business jargon of offering to settle "while admitting no wrong". That would have been hilarious to see the lawyers steam up over.....

Maybe it's a marketing ploy no behalf of Harvard. I must admit that previously, my impression of Harvard was similar to my impression of all the Harvard-grad politicians: more than a little too silver spoon elitist. This information gives me a much better impression of the school, even if it's not indicative of the institution as a whole, I'm bound to apply it that way. Hats off.

It's in civil court because it's copyright infringement and that's civil law. They can't cry in court about stealing music, because stealing is theft and is criminal. I may consider the amounts the RIAA is demanding criminal, but that's hardly a legal opinion. Basically, I'm concerned that if this ends up a criminal proceeding, then jail time is potentially attached to a loss of a file sharing case.

Interesting how this mindset abruptly changes when the 'property' becomes an abstract entity like a 'digital' file which can be duplicated effortlessly and with zero cost.

As far as I am concerned this Harvard group of robber-clowns should be jerk-toasted in the legal proceedings.

Copyright is a distinct privilege afforded to creatives who are at the whim and mercy of markets, corporations, and the public.

You refer to the corporations as blood-thirty...

I state, unequivocally, that the public puts corporations to shame in the department of rank exploitation.

Wow, that's a lot of hate.

First, why is the Harvard group of robber-clowns to blame? They're defending someone who may have been falsely accused.

Second, Copyright in its current form is <sarcasm>slightly</sarcasm> broken. Most of your artists don't see significant payment for their work. They created copy written material for their company only to see the company take all the profits. Of course, that's not at issue here. But it's a good reference point nonetheless.

Third, I shouldn't feed the troll who registered today and made such a flame bait worthy post.

Originally posted by Agile Cyborg:Creative-content looters should be smacked down- hard.

Interesting how this mindset abruptly changes when the 'property' becomes an abstract entity like a 'digital' file which can be duplicated effortlessly and with zero cost.

As far as I am concerned this Harvard group of robber-clowns should be jerk-toasted in the legal proceedings.

Hard? Really? Copyright infringement of this nature is at worst petty theft, so if you think it should be punished with anything more than a slap on the wrist you're the one who thinks that theft of intellectual property is fundamentally different than theft of physical objects.

quote:

I state, unequivocally, that the public puts corporations to shame in the department of rank exploitation.

Actually, in our country (I see you also live in the US) this "rank exploitation" is codified in the constitution, and practiced by the people who wrote it.

An opinion SUPPORTING the tagging and bagging of digital looters is an alternative reality you may have a problem with but labeling it trolling is reflective of the odious and rank rejection of a differing opinion.

Publicly-sanctioned thievery in the form of digital robbery only makes the life of artists far more complicated and difficult.

The Harvard robber-clowns are on a field trip here to cover for a thug who should have had the brains to realize he had zero business stealing digital property.

If this content-mugger was falsely accused why did he counter-offer the RIAA?

Obviously Harvard's standards are in question here if their so-called brightest are fulfilling a sordid urge to lynch copyright law.

Without the RIAA thrashing meatseats creatives would have practically zero protections in place to defend us from total public exploitation.

'Hard' is a subjective term here. I do not support unreasonable penalties for proven copyright infringement. Average folk should not serve time or pay many thousands of dollars for stealing songs. This is excessive.

Unfortunately, without this excess there exists almost no method of deterrence compelling the ignorant to consider acquiring their content in a legal fashion.

Originally posted by Agile Cyborg:'Hard' is a subjective term here. I do not support unreasonable penalties for proven copyright infringement. Average folk should not serve time or pay many thousands of dollars for stealing songs. This is excessive.

Unfortunately, without this excess there exists almost no method of deterrence compelling the ignorant to consider acquiring their content in a legal fashion.

...just like there exists no method of deterrence for petty theft of physical objects today?

Stealing a ball-point pen from your local pharmacy is 'not' publicly-sanctioned and lauded by Harvard robber-clowns which makes this selfish practice far less likely to occur which is a form of deterrence currently not applicable, in the broad sense, to the theft of digital content.

Originally posted by Agile Cyborg:...digital theft is ubiquitous, easy, and incurs little risk.

Stealing a ball-point pen from your local pharmacy is 'not' publicly-sanctioned and lauded by Harvard robber-clowns which makes this selfish practice far less likely to occur which is a form of deterrence currently not applicable, in the broad sense, to the theft of digital content.

Err, let me see if I've got this straight. You're saying that we need less punishment for people who are willing to take a risk, than those who think there's no risk to them at all? How in Gord's name did that sound okay in your head? Are you thinking that people who would shoplift are less likely to be deterred by penalties, and therefore should be rewarded with less penalty?

I am discussing the aspect of deterrence and why it is far easier to accomplish some form of this without psychological 'excess' within the sphere of physical theft, such as stealing a ball-point pen, which few resort to.

How you mangled my statement to resemble what you posted is a mystical process known only to you.

Originally posted by Agile Cyborg:I am discussing the aspect of deterrence and why it is far easier to accomplish some form of this without psychological 'excess' within the sphere of physical theft, such as stealing a ball-point pen, which few resort to.

I see. So is this belief grounded in some manner of research, or just your gut feeling? Alternately, do you believe that increasing the penalties beyond reason makes people less likely to break the rules out of submission, or more likely, as the rules don't make any sense?

My position has always been that the only viable long-term approach to piracy is education about the law and about the effort required to produce creative works. The problem is that education only works if what is being taught makes sense; if you teach everyone current copyright laws, they're likely to entirely disregard them, as disobeying something that doesn't make any sense is a fundamental part of human nature. About the only way you can defeat that nature is to rule primarily by fear, but I can't say I'm a proponent of that.

To me, there can be nothing resembling victory over piracy until the laws make sense. As such, your method can never achieve its goals.

So the public that you "state, unequivocally, that the public puts corporations to shame in the department of rank exploitation." spends more on music after stealing it from the internet. Such shameful behavior!

DRM isn't there to stop piracy, it's there to allow the RIAA and it's members to set up artificial markets so they can charge people in one country more than people in the next country over.